Category: Discrimination

Recently, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical advisory letter in response to a subcontractor inquiry who was facing a difficult question by its general contractor on the project. The general contractor requested the subcontractors employees, prior to being allowed to work on the project, to provide the original documents (e.g., U.S. passport, drivers license, social security card) that were provided to the subcontractor during the I-9 verification process. The subcontractor asked the OSC if such practice was permitted, and if not, what remedies were available to the subcontractor for the general contractors alleged improper request.

The OSC punted on responding to these questions directly. While stating that it is not allowed to provide an advisory opinion on any set of facts or involving a particular individual or entity, the OSC did say that:

(a) there were practical issues or problems associated with the general contractors request to have the subcontractors employees to present the same documents due to the passage of time between the original completion of the I-9 and the request by the general contractor;

(b) such practice might result in subcontractors employees perceiving they have been discriminated against due to their citizenship or immigration status, if they are ultimately barred from employment; and

(c) the subcontractors employees might allege discriminatory I-9 practices in violation of the anti-discrimination provision of the Immigration and Nationality Act.

The OSCs letter touches on a topic important to clients who have contract workers on their properties and premises. The general question asked is, What can I do to make sure that contract workers are authorized to work, since I can be held responsible if they aren’t? Here are a few things to consider:

As the owner and not the employer, you are only at risk if you know or have constructive knowledge that a contractors employee is unauthorized to work in the U.S.

Solid contractual provisions between you and the contractor that also flow down to any subcontractors are key. Make sure they address immigration law compliance, the I-9 verification process, E-verify (if applicable), as well as indemnification for non-compliance.

The applicable regulations state that the I-9 form is to be used only for enforcement of the immigration laws, so requests to audit I-9 forms, obtain copies of I-9 forms, or to obtain copies of documents presented to complete I-9 forms should be discussed with legal counsel.

As the owner, your legitimate interest is access to property and not employment, so you want to separate the two concepts with any requests or obligations you place on your contractors. For example, you may require individuals working on your property to present appropriate identification prior to having access to your premises. This is separate and distinct from any I-9 form process that occurs between your contractor and its employees.

Requiring your contractors to go through an immigration compliance audit by a third party you select may be the route to go, especially if you are allowing access to safety-sensitive, valuable, highly regulated or critical infrastructure property.

The bottom line is that there are right and wrong ways to ensure immigration compliance by your contractors and to reduce risk that you will be responsible for any non-compliance on their part.

Should an employer just hire U.S. citizens to avoid any risk of violating the Alabama Immigration Act, HB 56? It’s not a trick question. The clear answer is “No!”

For fear of running afoul of HB56, and all the penalties contained therein for employing an unauthorized worker, an Alabama employer may conclude it is just best to hire only U.S. citizens, since hiring individuals who are permanent residents or authorized aliens, for example, is too risky. That conclusion would a mistake.

The anti-discrimination law prohibits a policy of hiring U.S. citizens, unless that policy is specifically required by federal law. (For example, federal law may require that only U.S. citizens may have jobs that involve sensitive government or security information.)

Other types of prohibited discrimination include:

Demanding specific or additional documents from an employee instead of allowing the employee to present any of the documents listed on the acceptable list of documents for I-9 form completion.

Refusing to hire workers who sound or appear foreign.

Demanding that lawful permanent residents present new “green cards” when theirs expire but not demanding U.S. citizens to produce new documents when theirs expire.

And don’t think that employers who violate the anti-discrimination laws are not getting caught and fined. The OSC has published several cases on its website.

I believe that the OSC has a careful eye on states such as Alabama that have passed their own immigration laws, because it knows that an employer’s initial instinct may be to go beyond the permissible federal boundaries in attempting to comply with state law.